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no bull and the aftermath.

So, although I agree with you that depending on paper's case does not explicitly resolve

the question of what standard it would apply.

I think it's pretty clear now that the clear and present danger test would apply today

if this was a prosecution after the fact and the government would have to demonstrate

that the publication of the information did create such a harm.

Now since the court has never actually had to apply that test in a way that leads

it to uphold the conviction, we don't know in fact what clear or present or grave means.

Those phrases have been over the century, whose pictures, proofs have been interpreted

in very different ways.

So it's possible the court would uphold the conviction of New York Times if they were

prosecuted a year after the publication of the Pentagon papers if the government could

demonstrate that the publication of that information had in fact produced a serious harm

to American international relations with the ability to fight war and Vietnam effectively.

But the truth is we don't know what those phrases actually mean because the court has never

found the existence of a clear or present danger in the half century since the Pentagon

papers.

I'm Gat Goldsmith and this is the LawFair podcast April 20, 2021.

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